ASA and AGC Submit DOD Comments on Past Performance of Subcontractors and Joint Venture Partners

On Monday, July 19, 2021, ASA coauthored with the AGC that agree in part and disagrees in part with the Proposed Rule’s amendment to the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 823 of the National Defense Authorization Act for Fiscal Year 2019 (NDAA).  AGC and ASA agree with the Proposed Rule’s implementation to require performance evaluations in accordance with specified conditions for individual partners of joint ventures for Department of Defense (DOD) construction and architect-engineer services contracts with an estimated value of $750,000.

AGC and ASA disagree with on the Proposed Rule’s extension of past performance evaluations down in accordance with specified conditions to major first-tier subcontractors, and it is important to highlight that the Proposed Rule is a significant change in defense contracting; that is requiring subcontractors to now have a performance evaluation with defense agencies. In the long history of federal contracting in general, and DOD contracting specifically, the federal agency procuring construction was limited to a direct interaction with the prime contractor, the entity it directly contracts to perform the work, and not with any subcontractor or supplier. As such, it is important that any new regulation or reporting requirement recognizes this.

In summation, AGC and ASA requested DOD delay implementing Proposed Rule’s extension of past performance evaluations down in accordance with specified conditions to major first-tier subcontractors until more research is performed, questions are answered, revisions are made, and respectfully requests an additional public comment period on any revised proposal rule.  Conversely, AGC and ASA did not see any need to delay the Proposed Rule’s revisions to reporting requirements for partners in the Past Performance and Joint Ventures Proposed Rule. (letter attached).